Senator Markey has referred to the legislation as a “privacy bill of rights” and believes that recent privacy violations have necessitated consent-based legislation.

The CONSENT Act directs the Federal Trade Commission to “establish privacy protections for customers of online edge providers.” For example, notification about the collection and use of sensitive customer proprietary information (e.g., financial information, health information and application usage history), the types of information collected, how it will be used and shared, and who it will be shared with.

Notably, the CONSENT Act is in “opt-in” regime. It also prohibits refusing to make available products/services in the event that users do not consent to the use and sharing of their information.

The CONSENT Act also includes restoration prevention protections, disclosure requirements for discounts/incentives in exchange for the consent to use information, reasonable data security practice development requirements and the implementation of data breach notification requirements.

The CONSENT Act would be primarily enforced by the FTC and state Attorneys General. It proses EU-style privacy protections and could severely impact the ability of publishers to monetize data.

Also notable is that a California advocacy group is currently attempting to qualify a ballot initiative for EU-style privacy laws for upcoming general election that also poses a threat to ad-supported digital media.

Richard B. Newman is an FTC compliance and defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the FTC and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005.

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